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The Law of Divorce and the Problem of Marriage Stability

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The Law of Divorce and the Problem of Marriage Stability Vanderbilt Law Review Volume 9 Issue 4 Issue 4 - October 1956 Article 2 6-1956 The Law of Divorce and the Problem of Marriage Stability Max Rheinstein Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Family Law Commons Recommended Citation Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 Vanderbilt Law Review 633 (1956) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol9/iss4/2 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. THE LAW OF DIVORCE AND THE PROBLEM OF MARRIAGE STABILITY1 MAX RHEINSTEIN* In the mind of the American public, the topic of divorce has come to play a conspicuous role. The present symposium constitutes a part of an extensive debate which is carried on not only among experts but in which the general public also has shown a lively interest. The matter touches upon the lives of large numbers of people and it excites widespread curiosity and emotional reactions. The common attitude is one of uneasiness. The feeling is widespread that there are too many divorces, that the stability of family life has seriously de- clined, and that something ought to be done about it. The steady rise of the divorce rate, which appeared to be spectacular especially in the periods immediately following the cessation of hostilities in the two World Wars,2 has induced many people to view the situation with alarm. In this country this uneasiness has resulted not only in the extensive public preoccupation with the topic, but also in legislative plans and reforms, in resolutions and actions of ecclesi- astical bodies, and in a vigorous growth of marriage counseling and 3 services for education in family living. In England several Royal Commissions were appointed to investi- gate the problem and propose legislative action.4 In Germany a special cabinet ministry has been established to deal with the problem of how family stability might be protected and strengthened.5 In a similar way, as well as through the establishment of a whole net- work of private organizations, France has undertaken to deal with the matter.0 In the Scandinavian countries divorce has continued to * Professor of Law, University of Chicago Law School; Director, University of Chicago Comparative Law Research Center. 1. This article is based upon research currently pursued at the University of Chicago Comparative Law Research Center. A comprehensive presentation containing full documentation is in the course of preparation. 2. For a survey covering a number of significant countries, see Davis, Sta- tistical Perspectives on Marriage and Divorce, 272 ANNALS 9 (1950). For the United States, see CAVAN, THE AMcICAN FAMILY 645 (1953); JACOBS & GOEBEL, DOMESTIC RELATIONS 385 (3d ed. 1952). In the United States the number of divorces per 100 marriages occurring in the same year was estimated in 1867 to be 2.8; in 1890, 5.8; in 1910, 8.8; in 1930, 17.4; in 1949, 25.1; and in 1950, 23.1. 3. A more detailed discussion of these techniques is to be found in the text at notes 43-45 infra. 4. MATRIMONIAL CAUSES (TRIAL IN THE PROVINCES) COMMITTEE, REPORT (Oct. 25, 1943) (Chairman, Sir Ralph Wedgwood); COMMITTEE ON PROCEDURE IN MATRIMONIAL CAUSES, REPORT (1946-47) (Chairman, Mr. Justice Denning); DEPARTMENTAL COMMITTEE ON GRANTS FOR THE DEVELOPMENT OF MARRIAGE GUIDANCE, REPORT (1948); ROYAL COMMIssION ON MARRIAGE AND DIVORCE, REPORT (1956) (Chairman, Lord Morton of Henryton). 5. Bundesministerim fuer Familienragen,established in 1954. 6. Minist6re de la Sant6 Publique et de la Population. On the French Fain- VANDERBILT LAW REVIEW [ Vol,. 9 constitute a topic of lively public debate.7 On an international scale the Union des Associations Familiales8 has been established to co- ordinate the work of those national organizations which regard it as their aim to strengthen the institution of the family and its role in society. In the United States divorce has also come to attract the special at- tention of members of the legal profession who feel concern about the widespread use of collusive practices in divorce cases. It is common knowledge that in a vast number of divorce cases fabricated evidence is presented to the courts and true evidence is withheld from them in violation of the principle that in matters of divorce all relevant facts are to be truthfully presented. Perjured oaths are sworn not only by witnesses testifying to fabricated acts of adultery, cruelty or desertion, but also by plaintiffs who depose under oath that they have always conducted themselves as good and faithful husbands or wives, as the case may be, or that they have come into the forum state with the intention of there establishing a residence. The prev- alence of such practices is felt to endanger the integrity and reputa- tion of the bar, to bring into disrespect the law and its administrators, and to create an undemocratic discrimination between those who can, and those who cannot, pay for the services of a divorce specialist. Although marriage and divorce are topics of exclusive legislative jurisdiction of the states, the problem is being discussed on a nation- wide scale. Divorce laws diverge widely from state to state. The laws of those states which, like New York, insist upon strictness, can easily be avoided or evaded by real or fictitious migration. Divorce by mutual agreement, which is not foreseen in the official law of any state, has been made available by the Supreme Court to prac- tically any couple one of whom at least is willing to pay for the expense of the trip to Reno and commit perjury as to the intent of staying there indefinitely. 9 Proposals to create by constitutional amendment federal regulatory power over divorce were made as long ago as the 1880's. The chances of such an amendment appear to- day to be slimmer than ever. Equally unavailing have been the re- ly Associations, see Boudet (Director of the International Union of Family Organizations, Paris), Some Aspects of Security and of Responsibilities of Families, 17 MARRIAGE AND FAMILY IVING 221 (1955). 7. Cf. A. MYRDAL, NATION mN FAmI y (1941); Svalastoga, The Family in Scandinavia, 16 MARRIAGE AND FAmILy LIVING 374 (1954), and literature cited therein. 8. International Union of Family Organizations. The quarterly periodical Familles dans le monde has been published by it since 1948. See also Organi- sations familiales dans le monde (1947). 9. Johnson v. Muelberger, 340 U.S. 581 (1951); Coe v. Coe, 334 U.S. 378 (1948); Sherrer v. Sherrer, 334 U.S. 373 (1948). An attempt to eliminate the requirement of committing perjury has been frustrated, at least for the time being, by the Supreme Court of the United States. Granville-Smith v. Granville-Smith, 349 U.S. 1 (1955). 1956] PROBLEM OF MARRIAGE STABILITY peated efforts at uniform state legislation. Futile also seems to have been the attempt of the American Bar Association in sponsoring the establishment of an Interprofessional Commission on Marriage and Divorce to stimulate the drafting of a model law. When that Commission was established in 1950, it was greeted with great expectations. But it has not produced any model law or even any recommendations. In strange contradiction to the excited public interest in the problem of divorce, the Commission has been unable in this country of wealthy foundations to secure even those small funds which would be necessary to make possible meetings of its members. In spite of this handicap some of the com- missioners managed to meet on several occasions. Short though their discussions were, they resulted in the important insight that the problem is more complex than it is commonly assumed to be, and that it cannot be profitably tackled without the acquisition of con- siderably more knowledge of facts than we have presently available. To obtain this knowledge extensive research thus came to appear indispensable before any agreement about proposals could be achieved. Such research has been undertaken by the University of Chicago Comparative Law Research Center, the director of which is a member of the Commission. In these investigations the Center has benefited from cooperation of the University of Chicago Family Research Center, directed by Professor Nelson Foote. Through the support of the Chicago-Frankfurt Exchange Project, it was also possible to es- tablish cooperation with the Faculty of Law of the University of Frankfurt and with that University's Institute of Social Research. 0 The investigations are far from being completed, but they have sufficiently progressed to allow a tentative statement of at least those aspects the clarification of which has come to appear necessary for a productive approach to the problem of divorce." To the author of this article, it seems, that the investigations have also proceeded far enough to indicate the impracticability of certain plans which have been advocated with great hopes and enthusiasm. I. THE THERAPEUTIC APPROACH. The proposal which seems to be most hopefully regarded in the 10. The Frankfurt participants in the project are Professor Dr. Ernst Wolf, Dr. Gerhard Lueke, Dr. Gerhard Baumert, Dr. Hermann Kraus, Mr. Jochem von Heeringen, and Mr. Hax. 11. Of the investigations undertaken so far, the following have reached the stage of tentative drafts: History and Present State of Divorce in France, Dr. Stoljar; History and Present State of Divorce in Sweden, Mr. N. Beckman; History and Present State of Divorce in Switzerland, Mr. von Fischer; History and Present State of Divorce in Germany; Marriage Stability in England be- tween 1660 and 1857, Mr.
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